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Reference re Public Service Staff Relations Act
Court of Appeal, Jackett C.J., Cameron and St.-Germain D.JJ.—Ottawa, May 15, 16 and 28, 1973.
Public service—Arbitration of dispute concerning terms of employment—Whether Director of Pay Research Bureau a compellable witness—Order to produce pay research docu- ments—Public Service Staff Relations Act, s. 107.
Jurisdiction—Reference of question of law to Court by federal tribunal—Federal Court Act, s. 28(4)—Reference restricted to question of law arising in proceedings before tribunal.
The Professional Institute of the Public Service of Canada was bargaining agent for certain professional employees in the public service. A dispute concerning terms and condi tions of the employment was referred by the Public Service Staff Relations Board to an arbitration tribunal. In the course of the hearing of the dispute, the tribunal at the Institute's request ordered the Director of the Pay Research Bureau to produce certain documents relative to the dispute and to appear for interrogation thereon. The Director object ed on the ground that he was exempted from giving evi dence by section 107 of the Public Service Staff Relations Act. The Public Service Staff Relations Board agreed and vacated its order. At the request of the Institute the effect of section 107 of the Public Service Staff Relations Act was referred by the Board to this Court pursuant to section 28(4) of the Federal Court Act, which permits the reference by a federal tribunal of "any question or issue of law, of jurisdic tion or of practice and procedure to the Court of Appeal for hearing and determination".
Held (per curiam), the reference was not within section 28(4) which contemplates the reference by a tribunal of a question of law arising at some stage of the tribunal's proceedings and can only be made by the tribunal itself, and moreover a question of law that must be determined for the purpose of dealing with the matter before the tribunal and not an academic question.
Per Jackett C.J. (Cameron and St.-Germain D.JJ. express ing no opinion), members of the Pay Research Bureau are entitled to the protection of section 107 of the Public Service Staff Relations Act.
APPLICATION. COUNSEL:
J. C. Hanson, Q.C., for the Professional Institute of the Public Service.
R. Vincent for Deputy Attorney General of Canada.
J. M. Coyne, Q.C., and F. Lemieux for Pay Research Bureau.
SOLICITORS:
Heron, Hanson and Carleton, Ottawa, for the Professional Institute of the Public Service.
Deputy Attorney General of Canada.
Herridge, Tolmie, Gray, Coyne and Blair, Ottawa, for Pay Research Bureau.
JACKETT C.J.—Section 28(4) of the Federal Court Act, R.S.C. 1970, c.10 (2nd Supp.) reads as follows:
(4) A federal board, commission or other tribunal to which subsection (1) applies may at any stage of its proceed ings refer any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination.
On January 18, 1973, there was filed in the Registry of this Court a document reading as follows:
IN THE FEDERAL COURT OF APPEAL
IN THE MATTER OF:
A reference pursuant to subsection 28(4) of the Federal Court Act of a question or issue of law that has arisen in connection with a reference to the Public Service Staff Relations Board under section 23 of the Public Service Staff Relations Act by the Professional Institute of the Public Service of Canada in connection with a decision of the Public Service Arbitration Tribunal.
REFERENCE PURSUANT TO SUBSECTION 28(4) OF THE FEDERAL
COURT ACT
TAKE NOTICE that the Public Service Staff Relations Board refers the following question or issue of law to this Honour able Court for hearing and determination, namely:
Is it the effect of section 107 of the Public Service Staff Relations Act that the Director of the Pay Research Bureau or his representative is not required to produce to the Public Service Arbitration Tribunal documents obtained or prepared by the Pay Research Bureau in the course of carrying out its duties or to give evidence with respect thereto?
Dated at Ottawa this 18th day of January, 1973.
(Signed)
J. Finkelman, Chairman,
Public Service Staff Relations Board.
On January 29, 1973, on an application for directions under Rule 1501, which came on for hearing before me, counsel appeared on behalf of the Professional Institute of the Public Ser vice of Canada, the Pay Research Bureau and the Deputy Attorney General of Canada and, as a result of a discussion of the apparent impossi bility of deciding the question posed by the Reference as a "question or issue of law" in the absence of any findings of fact and, in particu lar, in the absence of any findings of fact as to the nature or identity of the "Pay Research Board", counsel undertook to endeavour to agree on facts and on the terms of an order of directions.
On March 12, 1973, there was filed in this Court an "Agreed Statement of Facts" bearing date March 9, 1973, signed by counsel for the aforesaid parties and reading as follows:
IN THE MATTER of a reference regarding the application of Section 107 of the Public Service Staff Relations Act to the Pay Research Bureau.
AGREED STATEMENT OF FACTS
PART I-EVENTS LEADING TO REFERENCE
1. The Public Service Staff Relations Board on the 17th day of December, 1968, under the provisions of the Public Service Staff Relations Act, certified the Professional Insti tute of the Public Service of Canada (hereinafter called "the Professional Institute") as bargaining agent for all employees of Her Majesty in right of Canada, as represent ed by the Treasury Board, in the Economics, Sociology and Statistics group in the Scientific and Professional category.
2. The Professional Institute, under the provisions of the said Act, on the 20th day of December, 1968, specified arbitration as the process for resolution of any dispute to which it might be a party in respect of such bargaining unit.
3. On the 1st day of May, 1972, notice to commence bargaining collectively was served by the said Professional Institute on the Treasury Board.
4. On the 11th day of May, 1972, the said Professional Institute, by notice in writing, to the Secretary of the Public Service Staff Relations Board requested arbitration in respect of the terms and conditions of employment of employees in the said bargaining unit pursuant to section 63 of the said Act.
5. (a) On the 2nd day of June, 1972, a division of the Public Service Arbitration Tribunal was duly constituted under the provisions of the said Act consisting of:
René Lippé, Esq., Q.C. (Chairman) and Messrs. K. W. Preston and J. T. Montague (Members).
(b) The matter in dispute was referred to the Tribunal by the Chairman of the said Public Service Staff Relations Board.
(c) The said dispute included inter alia a dispute on salaries.
(d) The said Tribunal heard the parties to the dispute on the 10th and 11th days of July, 1972, and the parties submitted written rebuttals on the 2nd day of August, 1972.
6. On the 26th day of July, 1972 the said Professional Institute, by notice in writing, requested the said Tribunal to require the Pay Research Bureau to produce certain docu ments to the Tribunal.
7. On the 29th day of September, 1972, the said Arbitration Tribunal issued the following direction to the Pay Research Bureau:
Orders the Director of the Pay Research Bureau, Mr. T. J. Wilkins or his representatives to appear before the Tri bunal on October 10th, 1972, at the hour of 10:30 o'clock in the forenoon, at 110 O'Connor Street, on the tenth floor, and to produce all pertaining documents relating to the job matching, Ontario Provincial Civil Service, for 1970—before reclassification of Economists in the Feder al Public Service and 1971—after such reclassification; and there, if need be, to be interrogated on such documents.
8. (a) On the 10th day of October, 1972, the Director of the Pay Research Bureau appeared before the said Tribunal; through his attorneys he requested that the Tribunal's sub poena, dated the 29th day of September, 1972, be with drawn or set aside by the Tribunal on the two following reasons:
A—Section 107 of the Public Service Staff Relations Act provides that neither the Director nor any officer or employee of the Pay Research Bureau is required to give evidence in proceedings before the Tribunal, and
B—In any event, the information referred to in the subpo ena is privileged from disclosure under the common law and authorities related thereto.
(b) The said Tribunal adjourned the proceedings for writ ten argument to be completed and placed before it on or before the 24th day of October and any replies thereto on or before the 7th day of November, 1972.
9. In a decision dated the 14th day of December, 1972, and first communicated to the said Professional Institute on the 18th day of December, 1972, the Arbitration Tribunal set aside their Order issued on the 29th day of September, 1972.
10. On the 28th day of December, 1972, the said Profes sional Institute referred the said decision as a question of law and a question of jurisdiction to the Public Service Staff Relations Board under the provisions of Section 23 of the Public Service Staff Relations Act.
11. On the 15th day of January, 1973, the said Board directed that the proceedings before the Public Service Arbitration Tribunal, in the matter described in paragraphs 4 and 5, herein, be suspended until such time as the question
of law and or jurisdiction referred to the Board has been determined.
12. On the 18th day of January, 1973, the said Board, pursuant to Section 28(4) of the Federal Court Act, referred the following question or issue of law to the Federal Court of Appeal, namely:—
Is it the effect of Section 107 of the Public Service Staff Relations Act that the Director of the Pay Research Bureau or his representative is not required to produce to the Public Service Arbitration Tribunal documents obtained or prepared by the Pay Research Bureau in the course of carrying out its duties or to give evidence with respect thereto?
PART Il -PAY RESEARCH BUREAU
13. On the 4th day of September, 1957, the Civil Service Commission created a branch within its organization called the Pay Research Bureau (hereinafter called "the Bureau") to assist it in its task of making salary recommendations to the Government of Canada.
14. The purpose of the Bureau was to provide the Govern ment of Canada, the Civil Service Commission and the Civil Service Staff Associations with a central source of objective information on pay, benefits and working conditions in government, business and industry and to assemble and analyse factual evidence of trends in outside employment.
15. A few months later the Civil Service Commission estab lished an Advisory Committee on Pay Research. In connec tion with the functioning of the Bureau, the Advisory Com mittee on Pay Research, whose members were representative of both the official and staff sides, was responsible for advising on priorities, the selection of areas and classes for special study and the presentation and distribution of information.
16. The Public Service Staff Relations Act, (hereinafter referred to as the "Act") as well as the Public Service Employment Act, were assented to on the 23rd day of February, 1967 and proclaimed in force on the 13th day of March, 1967 bringing to employer-employee relations in the Public Service of Canada a new direction in structure and organization. On the 23rd day of February 1967 action was started by Treasury Board to transfer the Bureau from the jurisdiction of the newly established Public Service Staff Relations Board. Attached hereto as Exhibit "1" is Treasury Board Minute T.B. 665868 dated the 23rd day of February 1967 approving in principle the establishment of positions for the Public Service Staff Relations Board (hereinafter referred to as "the Board") including positions for the Bureau.
17. The actual establishment of positions for the Board including forty-three positions for the Bureau was provided for on the 28th day of March 1967 when Treasury Board passed, effective March 13th, 1967, its Minute 667480, attached hereto as Exhibit "2".
18. On the 2nd day of August 1967 Treasury Board by its Minute 669145, attached hereto as Exhibit "3", amended its Minute 665868 by establishing additional positions for the Bureau.
19. On the 31st day of May 1967, the Public Service Commission under the provisions of the Public Service Employment Act issued a blanket certificate in respect of the personnel who staffed the Bureau which certificate is attached hereto as Exhibit "4".
20. On the 6th day of April 1967, the Chairman of the Board forwarded to the Director of the Bureau the terms of reference for the Bureau. These terms of reference are attached hereto as Exhibit "5".
21. The Annual Estimates for the Board as presented to and approved by Parliament provide for the Bureau as an activ ity of the Board. For 1972-73, the relevant provisions appear at pages 20-28, 20-30 and 20-32 of the Annual Estimates (Blue Book). A copy of these pages is attached hereto as Exhibit "6".
22. The 1972-73 Estimates of the Board were incorporated in Vote 25 as listed on page 20-28 in the Blue Book.
23. Chapter 15, 21 Elizabeth II, assented to the 30th of June, 1972 being the Appropriation Act No. 3, 1972 approved Vote 25 and appropriated from and out of Con solidated Revenue Fund the monies for the operations of the Board.
24. As of February 19th, 1973 the number of full time continuing employees in the Bureau is 61 in the following classifications:
Senior Executive 3
Economics, Sociology and Statistics 4
Administrative Services 1
Computer Systems Administration 2
Personnel Administration 25
Clerical and Regulatory 15
Secretarial, Stenographic and Typing 11
25. The Advisory Committee on Pay Research referred to in paragraph 3 has been continued. It presently consists of the Vice Chairman of the Board as chairman and a number of members representing the employer and the bargaining agents. All members of the Committee, including its Chair man, are appointed by the Chairman of the Board. Nomina tions for membership on the Committee are sent to him by the groups involved.
26. Since 1967 the Bureau has operated under the supervi sion of its Director who reports to the Vice-Chairman of the Board. The authority to give general direction to the Direc tor of the Bureau is vested in the Chairman of the Board as the Chief Executive Officer of the Board. In practice, this direction is given by the Vice-Chairman of the Board. The Director of the Bureau also receives advice from the Advi sory Committee on Pay Research.
27. The following are some of the activities the Bureau carries on consistent with its terms of reference attached hereto as Exhibit "5":
(1) It obtains information on rates of pay, employee earn ings, conditions of employment and related practices pre vailing both inside and outside the Public Service to meet the needs of the parties to bargaining.
(2) It develops and maintains a fund of up-to-date data and conducts research studies to support the processes of collective bargaining in the Public Service of Canada.
(3) It provides information on compensation and related matters in the Federal Public Service, to industry, provin cial and municipal governments, and to other organiza tions when in the public interest.
28. The Bureau carries out other activities such as conduct ing a programme of basic research in compensation and related subjects; the Bureau is also responsible for replying on behalf of the Government to inquiries and requests concerning pay and related matters in the Public Service of Canada. In addition, special studies of individual occupa tions or specific conditions of employment may be conduct ed. Included among such studies is an annual study of Executive Compensation conducted for Treasury Board.
29. The Bureau gathers information on pay and working conditions from employers in the private sector and in other levels of government through the technique of personal visits or correspondence in the context of a survey programme.
30. Such information is supplied to the Bureau on a volun tary basis upon assurances given by the Bureau that the information so supplied will be treated in confidence and held within the Bureau.
31. After such information has been received the Bureau analyses it and presents its findings in the form of a formal report using statistical techniques designed to preclude the identification of individual company inputs. These reports are made available to both Treasury Board as the central employer as well as to the various separate employers and the staff associations concerned.
32. In determining programs, in setting priorities and in deciding on the information to be sought the Bureau receives advice from the Advisory Committee on Pay Research.
33. Officers and employees of the Board are appointed under the Public Service Employment Act. This Act governs the selection and appointment of employees to and within the Public Service, tenure of office, periods of probation, layoff and the release of employees for incompetence or incapacity.
34. To administer a personnel programme for the Board, a personnel administrator has been appointed. The request for staff appointment, the description of duties and the person nel action form of J. Ross McMahon, personnel administra tor for the Board, is attached hereto as Exhibit "7".
35. Recommendations for appointments to positions in the Bureau are made by the Director of the Bureau to the Personnel Administrator, or to the Secretary of the Board or to the Vice-Chairman of the Board, depending on the level of appointment and they in turn make requests for staff appointments to the Public Service Commission. Examples
of such requests by the personnel administrator are attached hereto as Exhibits "8", "9" and "10".
36. The procedure followed when recommending promo tions or salary increases for the personnel of the Bureau varies with the classification group which such personnel is related to. In respect of junior classification groups, promo tion and salary increases are recommended by the Director of the Bureau to the Vice-Chairman of the Board. In respect of senior classifications, recommendations for promotion are made by the Chairman of the Board to the Public Service Commission as evidenced by Exhibit "11" attached hereto. Similarly, for such levels, salary increases are approved by the Chairman of the Board as evidenced by Exhibit "12" attached hereto.
37. The Chairman or the Vice-Chairman of the Board has jurisdiction over the personnel of the Bureau in such mat ters as nominations for language training and leaves of absence. Attached hereto as Exhibits "13" and "14" are the nomination of Mr. T. J. Wilkins for the Bicultural Develop ment Program and approval of the loan of Mr. Wilkins' services to the Council of Maritime Premiers.
38. Delegation of signing authority with respect to appro priations provided for the Board relating to journal vouch ers, requisitions for cheques, certificates of performance, purchase and service contracts has been made by the Presi dent of the Privy Council as Minister responsible for the Board, upon the recommendation of the Chairman, to the Director and Assistant Directors of the Bureau as evidenced by Exhibits "15" and "16", the instruments of delegation.
39. By Order-in-Council P.C. 1968-2032, dated the 29th day of October, 1968, the Governor-in-Council designated the Board as a "separate employer" for purposes of Schedule I of the Act attached hereto as Exhibit "17".
40. By Order-in-Council P.C. 1968-18/1998, dated the 29th day of October, 1968, the Governor-in-Council authorized the Chairman of the Board to exercise and perform the powers and functions of the Treasury Board conferred by subsection (1) of section 7 of the Financial Administration Act in relation to employees of the Board appointed under the provisions of the Public Service Employment Act. A copy of P.C. 1968-2032, P.C. 1968-1 8 / 1 998 and the letter of transmittal of the Clerk of the Privy Council to the Chair man of the Board dated October 31, 1968, are attached hereto as Exhibit "18".
41. Exercising the authority vested in him by P.C. 1968- 2032 the Chairman of the Board on the 30th day of October, 1968 directed that the Public Service Terms and Conditions of Employment SOR/67-118 apply mutatis mutandis to the employees of the Board. The matters dealt with in the regulations cover hours of work, overtime, holidays, leaves, pay, casual, part time and seasonal employment and disci pline. Attached hereto as Exhibit "19" is the Chairman's directive dated the 30th day of October 1968.
42. Treasury Board directives on conditions of employment are not as such applicable to employees of the Board. However, the Chairman of the Board regularly reviews such
directives and, in his discretion, may adopt in whole or in part these directives as being applicable to the Board's personnel. Attached hereto as Exhibit "20" is Directive No. 49 dated the 8th day of March 1972 made by the Chairman of the Board adopting Treasury Board Circulars 1971-188 and 1971-189 being the compendia of terms and conditions of employment number 1 (Annex A) and number 2 (Annex B). Attached hereto as Exhibit "21" is Directive No. 50 dated the 4th day of May 1972 made by the Chairman adopting Treasury Board Circular 1972-55 dealing with terms and conditions of employment for senior executive officers.
43. All directives of the Chairman under the authorities referred to are applied to the personnel who comprise the Bureau as well as to other officers and employees of the Board.
Also on March 12, 1973, an order of directions under Rule 1501 was made in terms agreed upon by counsel for the aforesaid parties. This order specified the material that was to consti tute the "case" for determination of the refer ence (which includes all the documents evidenc ing the proceedings before the Public Service Arbitration Tribunal and the Public Service Staff Relations Board giving rise to the "Refer- ence" to this Court, the "Agreed Statement of Facts" and the documents referred to therein), and fixed a time for filing of memoranda of points of argument by the parties.
In due course, the "Reference" came on for hearing before this Court on May 15 and 16, 1973.
The question to which argument was directed by counsel for all three parties at that hearing was whether, on the facts as agreed on by the parties who appeared in this Court, members of the Pay Research Bureau were entitled to the protection afforded by section 107 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35 which section reads as follows:
Protection of Members and Staff
107. No member of the Board, of the Arbitration Tribunal or of a conciliation board and no adjudicator, conciliator or officer or employee of or person appointed by the Board shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of his duties under this Act.
The three subsidiary questions to which the parties directed argument in particular were:
(a) Is a member of the Pay Research Bureau an "officer or employee ... or" the Public Service Staff Relations Board within the meaning of those words in section 107?
(b) Was the matter before the Public Service Arbitration Tribunal a "civil action, suit or other proceeding" within the meaning of those words in section 107? and
(c) Is the work carried on by a member of the Pay Research Bureau carried on by him "in the discharge of his duties under this Act" within the meaning of those words in section 107?
I have had no difficulty in reaching the con clusion that the members of the Pay Research Bureau are entitled, on the facts agreed upon by the parties, to the protection of 'section 107 of the Public Service Staff Relations Act.
In so far as the first and third of the subsidi ary questions are concerned, they must, in my view, be answered in the affirmative once it is ascertained that the Pay Research Bureau is a branch of the Board's staff whose function is to provide a service that is "incidental to the attainment of the objects of this Act" within the meaning of those words in section 18 of the Public Service Staff Relations Act.' A study of that Act shows that one of its most important objects is to regulate remuneration and certain other working conditions in large sectors of the Public Service by collective agreement or arbi- tral awards. On the facts agreed upon, it is clear that the Pay Research Bureau's services are provided to the employer and to the employees' bargaining representatives with a view to facili tating the attainment of that object. The Bureau consists of officers and servants appointed as required by section 17(3) of the Public Service Staff Relations Act 2 because they are deemed necessary by the Board to carry out this part of the activities it carries on as authorized by sec tion 18. A person so appointed is, in my view, an "officer or employee of ... the Board" within the meaning of those words in section
107 and what such a person does is done, in my view, in the performance of his duties under the Public Service Staff Relations Act.
I am further of opinion that a matter before the Public Service Arbitration Tribunal is a "Civil ... proceeding" within the meaning of those words in section 107 of the Public Service Staff Relations Act. I recognize that the word "proceeding", in this context, had its origin in connection with matters in the ordinary courts of the land but, in current use, it refers, in my understanding of the use of language, to matters before any person or persons having authority to make decisions or give advice after hearing evidence or otherwise giving persons concerned an opportunity of putting forward their point of view.' Furthermore, it is, in my view, inconceiv able that Parliament would have provided the protection of section 107 against being com pelled to give evidence in the traditional tri bunals but have withheld it from persons who might otherwise be compelled to give evidence before one of the numerous other authorities who are armed with powers to compel the giving of evidence.
I am, therefore, of the view that the Director or any other member of the Pay Research Bureau is entitled, on the facts agreed upon by the parties, to the protection of section 107.
Having reached that conclusion, the question remains as to what disposition should be made of the "Reference" made by the Public Service Staff Relations Board to this Court.
After consideration, I have come to the con clusion, for the reasons hereafter set out, that that "Reference" is not such a reference as is contemplated by section 28(4) of the Federal Court Act and that this Court has not, therefore, authority to determine the question set out therein.
Section 28(4) may be repeated here for con venience. It reads as follows:
(4) A federal board, commission or other tribunal to which subsection (1) applies may at any stage of its proceed ings refer any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination.
It is important to note that this provision is not authority to give an advisory opinion such as is contained in section 55 of the Supreme Court Act, 4 under which a question is referred to the Supreme Court of Canada for "hearing and con sideration" and the Court is required to express "its opinion" upon a question so referred. Sec tion 28(4) contemplates a "question or issue of law" arising at some "stage" of a tribunal's "proceedings" being referred to this Court by the tribunal for "hearing and determination" (the underlining is mine). In my view, such a reference can only be made by an order of the tribunal in question that puts before this Court such findings of fact, or other material, as that tribunal would base itself on if it were determin ing the question or issue of law itself. 5 Further more, in my view, section 28(4) in so far as questions of law are concerned, contemplates only the determination of a question of law that must be determined for the purpose of dealing with the matter that is before the tribunal making the reference and does not contemplate determination of a question of law expressed in academic terms . 6
Applying those views to this matter, I am of the view that the "Reference" here does not fall within section 28(4) because it does not put before this Court any findings of fact or other material on which a tribunal would decide a question of law itself. Furthermore, it is defec tive because it asks a question about the application of section 107 to any document "obtained or prepared by the ... Bureau in the course of carrying out its duties" and not about its application to specific documents.'
Finally, at least in form, the "Reference" here does not fall within section 28(4) because it asks the Court to answer a question—that is, it asks for advice—and does not set up a question of law on an appropriate foundation of findings of fact or other material for "determination".
I am of opinion that this Court's judgment should be that, having concluded that the "Ref- erence" is not such a reference as is contem plated by section 28(4), the Court does not answer the question contained therein.
CAMERON and ST. -GERMAIN D.JJ. concurred in the disposition of the matter proposed by the Chief Justice and with his Reasons therefor, but expressed no opinion as to whether section 107 applies to members of the Pay Research Bureau.
' 18. The Board shall administer this Act and shall exer cise such powers and perform such duties as are conferred or imposed upon it by, or as may be incidental to the attainment of the objects of, this Act including, without restricting the generality of the foregoing, the making of orders requiring compliance with this Act, with any regula tion made hereunder or with any decision made in respect of a matter coming before it.
2 (3) Such other officers and employees as the Board deems necessary for the performance of its duties shall be appointed under the Public Service Employment Act.
3 Compare section 28(4) of the Federal Court Act and section 68 of the Public Service Staff Relations Act.
4 Compare In re Reference by the Governor in Council (1910) 43 S.C.R. 536, and Attorney-General for Ontario v. Attorney General for Canada [1912] A.C. 571.
5 A question or issue of fact is "determined" by making a finding of fact, where there has been a dispute with regard thereto, on the evidence. A question or issue of law is "determined" by making a finding as to the legal conse quences that flow from facts as found or agreed on, where there has been a dispute with regard thereto. An order of reference under section 28(4) should, in my view, set out the facts established before the tribunal, indicate the dispute that has arisen before the tribunal as to the legal conse quences flowing from those facts, and refer that question or issue of law to this Court for hearing and determination.
6 In my view, the power is not different in kind from the power of a Court to decide a question of law before trial. Compare Libbey-Owens-Ford Glass Company v. Ford Motor Company (1968) 38 Fox P.R. 76, and the cases referred to therein.
7 There may well be documents so obtained or prepared that do not contain "information" to which section 107 applies. Indeed, I venture to suggest that the difficulty arises here because the question that the Board itself is being
asked to determine under section 23 of its Act has been raised prematurely. I say this because, as I see it, there is nothing in section 107 to prevent a member of the Pay Research Bureau being a witness. It merely acts as a shield against a special class of evidence being given; and, as I see it, the appropriate time to take objection to particular evi dence is when such evidence is tendered so that the tribunal concerned can know what that evidence is and can consider whether such a provision as section 107 or some other rule of law operates to require that it be excluded.
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